Vladimir Kartchev and Secretary, Department of Education, Employment and Workplace Relations

[2012] AATA 686

[2012] AATA 686

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2731
Re	Vladimir Kartchev
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	5 October 2012
Place	Melbourne

The Tribunal sets aside the decision under review and remits the matter to the respondent for determination of Mr Kartchev's participation payments on the basis that:

a.   he did commit a participation failure on 1 December 2011 but

b.   he did not commit participation failures on 7 and 22 November 2011; and

c.    he did not commit a serious failure for persistent non-compliance.

[sgd]..........................................................

Mr Conrad Ermert, Member

CATCHWORDS

Newstart Allowance - participation failure - reasonable excuse - persistent failures - serious failures - eight-week suspension of participation payments - decision set aside

LEGISLATION

Social Security (Administration) Act 1999 sections 42E, 42M, 42P, 42U and 42UA

Social Security (Reasonable Excuse - Participation Payment Obligations) (DEEWR) Determination 2009 (No1) sections 5(2) and 3

Social Security (Administration) (Persistent Non-compliance) (DEEWR)

Determination 2009 (No1) section 4

REASONS FOR DECISION

Mr Conrad Ermert, Member

5 October 2012

INTRODUCTION

1. The applicant, Mr Kartchev, has been receiving Newstart allowance (NSA) since 2006.  Centrelink, the service provider for the respondent, advised Mr Kartchev, on three occasions relevant to this case, of a requirement to attend appointments at MAX Employment (MAX), a job services provider.  The dates of the appointments were 7 November 2011, 22 November 2011 and 1 December 2011. 

2. Mr Kartchev did not attend the appointments.  He claimed that his back condition prevented him from attending.  Centrelink had no record of Mr Kartchev advising them or MAX that he would not be able to attend.  Centrelink advised Mr Kartchev that he did not have a reasonable excuse for failing to attend the appointments.  A Centrelink officer conducted a Comprehensive Compliance Assessment on 13 December 2011.  The officer noted that Mr Kartchev had missed all 11 appointments within the six-month assessment period and that there were no issues impacting on his capacity to manage his participation requirements.  On 13 December 2011 Centrelink advised Mr Kartchev that, as he had persistently failed to meet his participation requirements, the payment of NSA would stop for eight weeks from 14 December 2011.

3. A Centrelink authorised review officer (ARO) affirmed this decision on 13 March 2012. The Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision on14 June 2012.  On 29 June 2012 Mr Kartchev lodged an application with this Tribunal seeking to review the SSAT decision.

   THE HEARING

4. Mr Kartchev represented himself at the hearing and gave evidence under affirmation. Ms Ailsa Bramley, an advocate from the Centrelink Program Litigation and Review Branch, represented the respondent. I took into evidence a bundle of three medical certificates for Mr Kartchev, dated 22 June 2011, 1 July 2011 and 28 October 2011 (Exhibit A1) and the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T-documents and Supplementary T-document (ST1)).

   THE ISSUE

5. The issues I need to  decide are whether Mr Kartchev:

   ·committed participation failures on:

   o7 November 2011,

   o22 November 2011, and

   o1 December 2011;

   ·had a reasonable excuse for any of the participation failures;

   ·has committed a serious failure because of the persistent non-compliance; and

   ·is liable to serve an eight-week non-payment period.

   THE EVIDENCE

6. Mr Kartchev said that, because of his medical condition shown on the medical certificate dated 22 June 2011 in Exhibit A1, Centrelink gave him a three-month exemption from having to attend appointments with MAX.  He said that this exemption was not documented but was an oral one by the Centrelink officer with whom he was speaking at the time.  He said the exemption period concluded at the end of September 2011. 

7. Mr Kartchev said Centrelink sent him a letter at the beginning of November notifying him of an appointment with MAX on 7 November 2011.  He said it was a very bad time for his medical condition, which was getting worse.  Mr Kartchev said he contacted Centrelink by telephone three or four days before the appointment and told a Centrelink officer that he would not be able to attend the appointment because of his bad back.   He said that the Centrelink officer told him that he would need to provide medical evidence of his condition.

8. Mr Kartchev said he did not attend the appointment on 7 November 2011 because of his back condition.  He said he assumed that Centrelink would accept his telephone call as advice that he would not be attending.  He obtained another medical certificate dated 28 October 2011 which he took in to the Centrelink office on 16 November 2011.  Mr Kartchev said that a Centrelink officer took the medical certificate and gave him a receipt number.  He said that the Centrelink Officer did not tell him that it would not be accepted.

9. Mr Kartchev said he also received the Centrelink notification of an appointment with MAX for 22 November 2011.  He said he did not attend the appointment as he did not feel well enough.  He also said that he told Centrelink on 16 November 2011 that he would not be attending the appointment on 22 November 2011.  Mr Kartchev said that since Centrelink had not advised him that his medical certificate would not be accepted, he assumed that it would be accepted and that he would be given another three months exemption. 

10. Mr Kartchev acknowledged that he received a notification to attend an appointment on 1 December 2011.  He agreed that he was told that his medical certificate dated 28 October 2011 was not accepted.  Mr Kartchev said he could not understand why Centrelink would not accept his medical certificate and felt sure that there was some misunderstanding. 

11. Ms Bramley submitted that it was impossible from the evidence to know what was said during the discussions with Mr Kartchev on 16 November 2011.  Ms Bramley submitted that there is no record of an exemption for Mr Kartchev from not having to attend appointments.  She submitted further that there is no record of any notifications by Mr Kartchev of an inability to attend the appointments.  Ms Bramley contended that Mr Kartchev did not have a reasonable excuse for not attending each of the appointments and that he did not contact Centrelink prior to the appointments, as required. 

12. Ms Bramley contended that Mr Kartchev committed participation failures on 7 November 2011, 22 November 2011 and 1 December 2011.  She contended further that there were no barriers that impacted significantly on Mr Kartchev’s ability to comply with the participation requirements.  She submitted that Mr Kartchev had committed a serious failure and, in the absence of evidence of financial hardship, Mr Kartchev is liable to serve an eight-week non-payment period.

    THE LEGISLATION

13. The relevant legislation is contained in the:

    ·Social Security (Administration) Act 1999 (the Administration Act);

    ·Social Security (Reasonable Excuse – Participation Payment Obligation) (DEEWR) Determination 2009 (No 1) (the Reasonable Excuse Determination); and

    ·Social Security (Administration) (Persistent Non-compliance) (DEEWR) Determination 2009 (No1) (the Persistent Non-compliance Determination.

    CONSIDERATION

14. Section 42E of the Administration Act provides that a person commits a connection failure if the person fails to comply with a requirement notified to the person. Section 63 provides for the Secretary to notify the person of a requirement to attend a particular place and the methods of giving such notice.

15. In his evidence Mr Kartchev acknowledged that he had received all the notices sent to him by Centrelink requiring him to attend MAX on 7 November 2011, 22 November 2011 and 1 December 2011 (the dates in question).  I find that in this case Mr Kartchev was properly notified of his requirements to attend appointments on those dates.

16. There is no dispute that Mr Kartchev did not attend the appointments made for him on the dates in question.  I find accordingly.

17. Section 42E(4) of the Administration Act provides that a person does not commit a connection failure if the Secretary is satisfied that they have a reasonable excuse.

18. The provisions for determining the reasonableness of an excuse are in section 5(2) of the Reasonable Excuse Determination.  Subsection (c) includes:

    An illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature. 

    Section 3 of that Determination provides that the Secretary must be satisfied that the condition had a significant effect on the person’s capacity to comply with the requirement. In addition, section 42UA of the Administration Act provides that an excuse cannot be reasonable unless, prior to the required activity, the person has notified the excuse to the person or body specified …as the person or body to whom prior notice should be given of his inability to attend. 

19. I will now consider whether Mr Kartchev had a reasonable excuse for not attending the appointment on each of the dates in question. 

    7 November 2011

20. In the Secretary’s Statement of Facts and Contentions, the Secretary accepts that Mr Kartchev had a condition that periodically restricted or prevented his daily activities.  As a consequence of a job capacity assessment conducted on 29 June 2011, a delegate of the Secretary accepted that Mr Kartchev had a temporary reduced work capacity until 29 September 2011.  Ms Bramley submitted that the requirement to attend an appointment on 7 November was outside this period.  Ms Bramley also submitted that there was no evidence that Mr Kartchev notifying MAX or Centrelink of his inability to attend.  She contended that as he did not notify of his inability to attend the appointment, his non-attendance cannot be taken to be a reasonable excuse.

21. Mr Kartchev was adamant in his evidence that he telephoned Centrelink three to four days prior to the appointment with MAX on 7 November.  He recalled the conversation with a Centrelink officer, in particular the requirement for him to submit a current medical certificate.  He subsequently obtained a medical certificate from his doctor and lodged it with Centrelink on 16 November 2011. 

22. Although Mr Kartchev’s evidence was confused at times, his statements about making a prior telephone call to Centrelink were clear and repeated on a number of occasions under cross-examination.  I accept Mr Kartchev’s evidence as factual and find that he did notify Centrelink of his inability to attend, prior to his appointment on 7 November with MAX.

23. I note Ms Bramley’s contention that Mr Kartchev’s exemption period had ceased on 29 September 2011.  The Secretary’s Statement of Facts and Contentions  also include the observation that:

    The condition did not prevent Mr Kartchev from attending Centrelink to lodge his fortnightly forms on 2 November 2011 and 16 November 2011. 

24. Mr Kartchev’s evidence was that his back condition had not changed from the condition described in his medical certificate dated 1 July 2011.  Mr Kartchev testified that at the beginning of November 2011 his back condition was at its worst.  It is clear from his evidence that Mr Kartchev expected that Centrelink would accept the medical certificate dated 28 October 2011 and grant him an exemption from further appointments for the period of the certificate, that is until 2 February 2012.  Mr Kartchev was not told that his medical certificate was not accepted until 29 November.  

25. For the 7 November appointment, I accept that Mr Kartchev no longer had an exemption from Centrelink excusing him from attending appointments.  However, the cessation of the exemption did not, in my opinion, change his medical condition.  Mr Kartchev’s medical condition was confirmed by his doctor in the medical certificate dated 28 October 2011.  The doctor’s opinion is that Mr Kartchev was unfit to undertake his usual work/study from 2 November 2011 to 2 February 2012; and he could not do any other work for eight hours or more per week.  This opinion is identical to that given in the medical certificate dated 1 July 2011.   In the absence of a supporting medical opinion, I give little weight to the Secretary’s observation about the impact of Mr Kartchev’s condition on his capacity to comply with the requirement to attend the appointment on 7 November.

26. From the evidence of Mr Kartchev and the medical certificates, I find that, at the time of the 7 November appointment, Mr Kartchev had a condition which met the requirements of section 5(2)(c) of the Reasonable Excuse Determination.  I am also satisfied that Mr Kartchev’s condition had the same effect on his capacity to comply with the participation requirement as was accepted previously by Centrelink in applying an exemption period until the end of September.  Accordingly, I find that section 3 of the Reasonable Excuse Determination does not apply to the circumstances of the 7 November appointment.

27. I have already found that Mr Kartchev did notify Centrelink of his inability to attend prior to the 7 November appointment.  Accordingly, I find that Mr Kartchev had a reasonable excuse for not attending the 7 November appointment and that he did not commit a participation failure on that date.

    22 November 2011

28. In regard to the appointment with MAX on 22 November, Mr Kartchev testified that he could not attend as he was not well enough.  He said that he informed a Centrelink officer of his inability to attend on 16 November 2011 when he lodged the medical certificate dated 28 October 2011 for his back condition.  Mr Kartchev said that he assumed he would be given another three months exemption from attending appointments in the same way he had been given his earlier exemption.

29. Ms Bramley contended that Mr Kartchev’s medical certificate had not been accepted by Centrelink and therefore he was not exempt from the requirement to attend the 22 November appointment.  She submitted that there was no record of Mr Kartchev giving prior advice to Centrelink of his inability to attend.  Accordingly, Ms Bramley contended that Mr Kartchev had no reasonable excuse for not attending the appointment.

30. The evidence is that Mr Kartchev lodged a current medical certificate dated 28 October 2011 on 16 November 2011.  It was received and receipted by a Centrelink officer on that day but Mr Kartchev was not informed that his medical certificate was not accepted until 29 November 2011.  At the time of the 22 November appointment, Mr Kartchev had a medical condition which had not changed from that described in his earlier medical certificates.  Following the same reasoning as for the 7 November 2011 appointment, I find that Mr Kartchev had a condition satisfying section 5(2)(c) of the Reasonable Excuse Determination.  

31. I am also satisfied  that Mr Kartchev’s back condition had the same effect on his capacity to comply with the participation requirement as was accepted previously by Centrelink in applying an exemption period until the end of September.  Accordingly, I find that section 3 of the Reasonable Excuse Determination does not apply to the circumstances of the 22 November appointment.

32. In regard to prior notification, Mr Kartchev testified that he notified Centrelink on 16 November 2011 that he would not be attending the 22 November appointment because of his back condition. Although there is no record of this advice, it is not in dispute that he attended a Centrelink office on this day and lodged a medical certificate recording his condition to be ongoing for three months. I accept that it would be reasonable for Mr Kartchev to notify his inability to attend the 22 November appointment while he was physically present at the Centrelink office and lodging a medical certificate to support his claimed inability to attend. Accordingly, I accept Mr Kartchev’s evidence as being factual and I find that Mr Kartchev did provide prior notification of his inability to attend an activity as required by section 42UA of the Administration Act.

33. Accordingly, I find that Mr Kartchev had a reasonable excuse for not attending the 22 November appointment and that he did not commit a participation failure on that date.

    1 December 2011

34. Ms Bramley submitted that Centrelink had not accepted Mr Kartchev’s medical certificate as sufficient reason for his inability to attend the appointment and had advised Mr Kartchev of the non-acceptance on 29 November 2011.  Ms Bramley submitted further that Mr Kartchev gave no prior notification of his inability to attend the appointment on 1 December.  Ms Bramley contended that Mr Kartchev had no reasonable excuse for not attending the appointment.

35. Mr Kartchev testified that he did not attend the appointment on 1 December and that he gave no prior notification of his inability to attend. 

36. I find that the provisions of section 42U of the Administration Act were not satisfied and that Mr Kartchev had no reasonable excuse for not attending the appointment. Accordingly, I find that Mr Kartchev committed a participation failure on 1 December 2011.

    Persistent Non-compliance

37. Section 4 of the Persistent Non-compliance Determination provides that in deciding whether a person persistently failed to comply with his obligations the Secretary must take into account whether the person has committed three or more participation failures during the assessment period.  In the Secretary’s Statement of Facts and Contentions

    The Secretary contends that the requirements of the Determination have been satisfied, in that Mr Kartchev committed three failures in the relevant period (on 7 November, 22 November and 1 December 2011) .... 

38. I have already found that Mr Kartchev did not commit participation failures on 7 and 22 November 2011.  Accordingly, I find that Mr Kartchev has not committed three participation failures in the relevant period and he has not persistently failed to comply with his obligations under section 4 of the Persistent Non-compliance Determination. 

39. Section 42M of the Administration Act provides that the Secretary may determine that a person commits a serious failure if he persistently fails to comply with his obligations. Section 42P of the Administration Act provides that a participation payment is not payable for eight weeks for a serious failure.  I have found that Mr Kartchev has not persistently failed to comply with his obligations over the dates in question.  Accordingly, I find that Mr Kartchev did not commit a serious failure and that the provisions for a suspension of the participation payment are not enlivened.

    CONCLUSION

40. I have found that Mr Kartchev did commit a participation failure on 1 December 2011 but did not commit participation failures on 7 and 22 November 2011.  I have found further that Mr Kartchev did not commit three participation failures over the dates in question.  Accordingly, Mr Kartchev has not committed a serious failure and the provisions for an eight-week suspension of his participation payments are not satisfied.  The matter is to be remitted to the respondent to determine Mr Kartchev’s benefits as a result of these findings.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member.

[sgd].......................................................................

Administrative Officer
Dated  5 October 2012

Date of hearing	14 September 2012
Applicant	In person
Advocate for the Respondent	Ms Ailsa Bramley, Centrelink Program Litigation & Review Branch